IN THE CIRCUIT COURT OF THE 5TH JUDICIAL CIRCUIT,
IN AND FOR PALM BEACH COUNTY, FLORIDA

JANE DOE, mother and legal guardian of JOHN DOE, a minor,
Plaintiff,

v.

Case No. CL 97-631AE

June 26, 1997

ORDER DISMISSING CLAIMS AGAINST DEFENDANT AMERICA ONLINE, INC.

This matter comes before the Court on Defendant America Online, Inc.'s (''AOL'') motion to dismiss pursuant to Rule 1.140(b)(6), Fla.R.Civ.P. Having reviewed the entire record herein, including the briefs filed by AOL and the Plaintiff, and having heard argument from all parties at a hearing on June 13, 1997, the Court now grants AOL's motion and dismisses all of the Plaintiff's claims against AOL with prejudice for the reasons set out below.

I.

AOL operates an interactive computer service over which millions of subscribers transmit and receive information through computer modem connections to AOL's computer network. AOL subscribers may communicate with one another over AOL's service in a variety of ways, including electronic mail (private electronic communications addressed to specific recipients), message boards (topical forums where subscribers post messages that may be read by all other subscribers), and ''chat rooms.'' Chat rooms are forums in which two or more subscribers may conduct real-time, computer-to-computer conversations, with the statements of each speaker briefly appearing on the computer screens of other participating subscribers.

The Complaint alleges that in early 1994 Defendant Richard Lee Russell committed sexual battery on John Doe, who was then eleven years old, and two other minor males.[1] Russell allegedly engaged Doe and the other minors to perform sexual activities with him and with one another, (Complaint P 23), and he allegedly videotaped and photographed these sexual acts. (Id. P 24.) The Complaint further alleges that Russell became an AOL subscriber in late 1993 or early 1994 and that he communicated with other people in AOL chat rooms ''to advertise and/or solicit'' and arrange for ''the sale and distribution of'' the aforementioned videotape and photographs. (Id. PP 24-26, 28.) The Complaint alleges that Russell's chat room conversations ''openly described the contents of the videotape and photographs ... and included the exchange of addresses and telephone numbers for purposes of the sale of ... pornographic materials.'' (Id. P 26.)

The Complaint does not allege that Russell ever transmitted any obscene material--including any material depicting Doe--over AOL's service. The only alleged obscene ''transmission'' specifically referenced in the Complaint--a single instance in which Russell allegedly sent a videotape through the U.S. mail to an Arizona man--did not involve use of AOL's service. (Id. P 27.) The Complaint alleges that AOL was ''on notice'' that its service was being used for marketing of child pornography material and that complaints regarding Russell were communicated to AOL. (Id. PP 21-22.) The Complaint alleges that Doe suffered emotional injuries--i.e., ''humiliation, embarrassment, mental anguish, loss of the capacity for the enjoyment of life, and expense of psychological care''--as a result of Russell's alleged distribution of the videotape and photographs depicting Doe. (Id. PP 30, 34, 39, 44.)

Defendant Russell is presently serving lengthy federal and state prison sentences arising out of events relating to those alleged in the Complaint. He pled guilty and was convicted on federal criminal charges of sexual exploitation of children and transportation of sexually explicit material involving a minor and state criminal charges of attempted capital sexual battery.

The Complaint asserts four counts against AOL. Counts I and II purport to state claims under Fla. St. Sections 847.011(1)(a) and 847.0135(2), respectively, which establish criminal penalties for certain conduct involving the sale or distribution of obscene materials. Count III, captioned ''negligence per se,'' also seeks to hold AOL liable for an alleged violation of Section 847.0135. Count IV, captioned ''negligence,'' contends that AOL breached an alleged duty to exercise reasonable care to ensure that its service not be used for the ''purposes of the sale and or distribution of child pornography.'' (Complaint P41.) The Complaint also asserts two separate counts against Russell for alleged violations of Sections 847.011 and 847.0135.

AOL has moved to dismiss on three separate and independent grounds. First, it asserts that all of Doe's claims against AOL are barred by Section 230 of the Communications Decency Act, 47 U.S.C. Section 230, which prohibits civil actions that seek to treat the provider of an interactive computer service as the ''publisher or speaker'' of messages transmitted over its service by third parties. Second, it asserts that all of Doe's claims against AOL, which seek recovery only for emotional injury, are barred because Doe has failed to allege physical injury resulting from a physical impact. Third, it asserts that Doe's claims against AOL under Florida's criminal obscenity laws, Fla. Stat. Sections 847.011(1)(a) and 847.0135(2), as well as his claim of ''negligence per se'' based on an alleged violation of one of those statutes, fail because Florida law does not provide a private cause of action for violation of those penal statutes.

II.

The Court holds that all of Doe's claims against AOL are barred by 47 U.S.C.Section 230. This statute, which became law on February 8, 1996, states:

No provider ... of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

47 U.S.C. Section 230(c)(1). It further provides:

No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

Id. Section 230(d)(3) (emphasis added).

AOL is and ''interactive computer service'' as defined in Section 230(c)(2), and the communications allegedly made by Russell in AOL chat rooms are ''information provided by another information content provider'' within the meaning of Section 230(c)(1). See Zeran v. America Online, Inc., 958 F.Supp. 1124, 1132-33 (E.D.Va. 1997). Accordingly, the issue of whether Section 230 operates to bar Doe's claims against AOL reduces to the question of whether imposing liability under state law on the provider of an interactive computer service for injury allegedly resulting from a third party's online communications would treat the provider: as ''the publisher or speaker'' of those communications. If imposing such liability would have this effect, then Section 230 preempts and bars the state-law claims.

Making AOL liable for Russell's chat room communications would treat AOL as the ''publisher or speaker'' of those communications. First, it would subject AOL to precisely the same legal treatment (i.e., liability for damages allegedly suffered by Doe as a result of the communications) that Doe has sought with respect to Russell, who is the actual ''publisher or speaker'' of the statements at issue. Second, it would subject AOL to principles of liability that govern traditional publishers (such as newspapers and magazines) but that do not govern entities (such as telephone companies) that provide a service over which numerous third parties may communicate with one another. See, e.g. Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110, 1118-19 (11th Cir. 1992). cert. denied, 506 U.S. 1071 (1993). Third, it would impose on AOL, as a matter of law, a standard of care that would require AOL to monitor, screen and censor the great volumes of information transmitted over its system by third parties, which are the quintessential activities in which traditional publishers must engage.

Doe argues that Section 230 does not bar the claims against AOL because he has sued AOL in its capacity as a ''distributor''--rather than ''publisher or speaker''--of Russell's online statements. In support of this argument he cites Cubby Inc. v. Compuserve, Inc., 776 F.Supp. 135 (S.D.N.Y. 1991), a case decided under New York law over four years before enactment of Section 230. But Cubby held only that a distributor of online services, as a matter of First Amendment law, may not be held liable for harm resulting from third-party content absent a threshold showing that it ''knew or should have known'' of the content and its harmful nature. Id. at 139-41. Cubby did not suggest that holding such a provider liable for negligently ''distributing'' allegedly harmful third-party content about which the provider ''knew or should have known'' would not treat it as the ''publisher or speaker'' of that content. Moreover, the federal court in Zeran rejected the same argument now made by Doe, holding that suits for ''negligent distribution'' of harmful third-party material are simply a species of the broader category of suits for ''publishing'' such material. Zeran, 958 F.Supp. at 1133. Accordingly, to hold AOL liable for negligently ''distributing'' Russell's chat room statements, as Doe seeks, would treat AOL as the ''publisher or speaker'' of those statements in violation of Section 230.

The conclusion that Section 230 bars Doe's claims against AOL is reinforced by the statute's policy statement and legislative history. The preamble of Section 230 indicates that problems of harmful speech on computer networks, including speech related to ''trafficking in obscenity,'' should be addressed by ''vigorous enforcement of Federal criminal laws'' against the originators of such material, not through ''Federal or State regulation'' of the online services that are used as intermediaries for such speech. See 47 U.S.C. Sections 230(a), (b). (The fact that Russell is now serving a federal prison sentence suggests that in this instance the legal system has operated as Congress intended.) The statute's legislative history further evidences a recognition of the impossibility of requiring providers of online services ''to edit out information that is going to be coming to them from all manner of sources.'' 141 Cong. Rec. H4871 (daily ed. Aug. 4, 1995) (statement of Rep. Goodlatte).

Furthermore, holding AOL liable for harm caused by third-party messages on the theory that it ''knew or should have known'' of the messages and their harmful nature would defeat one of the other purposes of the Section 230, namely to remove disincentives for providers of online services voluntarily to screen or block objectionable content from their services. 47 U.S.C. Section 230(b)(4). As the federal court held in Zeran, subjecting such a provider to liability under a ''knew or should have known standard'' would discourage it from making efforts to screen or block--such as employing persons to monitor subscribers' use of the service--because doing so could provide the basis for finding that it ''knew or should have known'' of any harmful content that slips through the editing process. Zeran, 958 F.Supp. at 1135.

III.

Doe also argues that Section 230 should not apply at all in this case because, while this suit was filed one year after Section 230 was enacted and became effective, Russell's alleged chat room communications occurred before enactment. The Court concludes that this argument is not persuasive and that Section 230 controls this case.

The question whether a federal statute applies in a case involving pre-enactment events is governed by federal law. The leading authority on this issue is Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483 (1994). In Landgraf, the Supreme Court set out a two-prong analysis for determining this issue. Under the first prong, which is dispositive here, a federal statute must be construed to control all cases decided after its enactment, including cases dealing with pre-enactment events, if Congress has clearly expressed an intent that the statute reach such cases. See Landgraf, 114 S.Ct. at 1505.

Section 230 contains language that clearly expresses an intent that it reach cases such as this one, that are filed after the statute's enactment but that involve pre-enactment events. As noted above, in §230(d)(3), the statute specifically provides, in pertinent part, that

[n]o cause of action may be brought and no liability may be imposed under any state or local law that is inconsistent with this section.

The plain import of this language is that from the day of enactment forward, ''no cause of action may be brought'' under any inconsistent state or local law. As the federal district court ruled in Zeran,

[s]uch clear statutory language cannot reasonably construed to mean that only some [inconsistent] causes of action may be brought, namely those concerning events arising before the CDA. Thus, while Congress has expressed its intent with respect to retroactivity more directly in other circumstances, subsection (d)(3) constitutes an adequately clear statement of Congress' intent to apply §230 of the CDA to claims that are filed after the enactment of the CDA.

Because Section 230 bars all of Doe's claims against AOL, the Court neither reaches nor decides whether AOL's state law grounds for dismissal also bar these claims. Nor does the Court render any views at this juncture concerning whether or not Doe's separate claims against Russell, in the form that they are pled, state a valid cause of action against Russell, except to note that a defense under Section 230 is not available to Russell.

Accordingly, for the reasons set forth above, the Court hereby ORDERS that all of the claims asserted against DEFENDANT AMERICA ONLINE, INC., are dismissed with prejudice.

DONE AND ORDERED in Chambers, at the Palm Beach County Court House West Palm Beach, Florida, this 26 day of June, 1997.

FN2. Because the analysis under the first prong of the Landgraf test yields, without need for further inquiry, the result that Section 230 applies to cases that are filed after enactment but that involve pre-enactment events, the Court need not and does not reach the second prong of the test. The second prong examines whether application of a statute to pre-enactment conduct would have a ''retroactive effect,'' a term of legal art defined in Landgraf, 114 S. Ct. at 1505; see also Hunter v. United States, 101 F.3d 1565, 1570 (11th Cir. 1996), cert. denied, 1997 WL 120588 (May 12, 1977) ('''retroactive effect' ... does not describe all applications of a statute to preexisting causes of action or pending proceedings.'').